Feds' immigration-hold policy misguided

George Gascón

September 10, 2013

In my 30 years in law enforcement, I have often witnessed the unintended consequences of well-meaning but poorly developed public safety policies. Few have had as profound an impact on our constitutional rights as the widespread use of immigration holds issued by Immigration and Customs Enforcement. What the federal government touts as a sound public safety practice is having a chilling effect on local law enforcement's effectiveness.

In 2010, Norma, an undocumented immigrant living in San Francisco, was held on an immigration hold in our local jail for days without due process. Norma, repeatedly abused by her partner, had been too fearful to call police. When she finally did, she was arrested along with her abuser, even though no charges were filed against her. While her deportation was eventually canceled, Norma recalls being "so scared not knowing what would happen to my 3-year-old child while I was in jail. I later discovered that I had an immigration hold, even though no one told me what was happening."

Immigration holds are requests by an ICE officer to have local authorities hold someone up to 48 hours after local charges are resolved. It requires no demonstration of probable cause, and such holds are often issued with little more than a suspicion that the individual in question doesn't have documents. In no other aspect of law enforcement can we jail people without probable cause; the right to due process is the bedrock of the U.S. criminal justice system.

The use of immigration holds has led to mistakes and abuses. These include ICE agents relying on birthplace, language or physical appearance to determine who should be detained. This has resulted in the detention of hundreds of thousands of individuals, including U.S. citizens and authorized immigrants. In fact, between October 2008 and March 2010, ICE identified 16,870 U.S. citizens through this program. ICE stopped reporting the number of U.S. citizens identified in 2010, so the total number held is unknown.

The broader implications are concerning: Police occasionally arrest crime victims such as Norma when it is unclear who the perpetrator is, such as domestic violence cases where a victim fights back in self-defense. These victims may find themselves subject to immigration holds and detained in jail because an ICE agent believes they may match the identity of someone who could be deportable.

According to a recent study by the University of Illinois at Chicago, more than 4 in 10 Latinos say they are less likely to provide information about crimes because police are increasingly involved in enforcing immigration laws. Immigration holds were instituted by the federal government to protect public safety, but they are having the opposite effect by deterring victims and witnesses from working with law enforcement.

I have zero tolerance for serious or violent offenders, but we cannot throw out constitutional protections when they are inconvenient. Abandoning these principles under the guise of protecting public safety or controlling unauthorized immigration is not sound public policy, and it does not make us safer. ICE does not need an immigration hold to deport a serious or violent offender, or any offender. It is a luxury that allows them to jail people without compelling evidence.

Anytime a person is arrested and booked in jail, a background check is run. Personal details, including fingerprint information, are automatically shared with federal authorities. With this information, ICE can determine a subject's criminal history and investigate his or her immigration status. If ICE determines that a person poses a threat to public safety, it has a number of tools at its disposal to take that person into custody. These legal tools, such as a notice to appear or a warrant, require ICE to establish probable cause by confirming the person's identity and whether they are subject to deportation. Use of those tools would largely prevent citizens, authorized immigrants and victims of crime from being detained.

Responsible law enforcement officials should resist playing a role in this ill-conceived process. While immigration holds occasionally may result in the deportation of a violent offender, they do so at the expense of public safety, the trust and effectiveness of law enforcement and our constitutionally guaranteed right to due process. The San Francisco Board of Supervisors should support the legislation it will consider in the days ahead that will end this practice. By demanding that ICE establish probable cause before requesting that local law enforcement detain a person, San Francisco's leaders can more effectively protect public safety and civil liberties.